If this European letter to Obama turns out to be half of what has been suggested, it will be an interesting and newsworthy development.

But it is still only words.

Consider the hypocrisy of moving closer to Russia while Russia commits abuses at home and abroad that make the Bush administration look like saints. I hope the letter will address this hypocrisy, but I doubt it.

I'm all for holding Western powers to a higher standard of conduct, but if there is to be a Russian-German "partnership" (as opposed to a more expedient relationship such as Europe has with Iran, or the US has with Saudi Arabia) then it is time to hold Russia to the same high standards to which we hold ourselves.

It will be interesting to see if Obama's honeymoon is under more pressure from the right, or from the left.

For example, Khalid Sheik Mohammad, who is currently being held in Gitmo, has reportedly told the military tribunal that is prosecuting him, "This blessed hand severed the head of the Jew infidel Daniel Pearl." In addition, he reportedly confessed to involvement in the 1993 attack, 9-11, and many other incidents. If Gitmo is closed, it will be very, very difficult to convict him in a US court of law. Because of the doctrine of "tree of a poisoned fruit" (which I support), KSM's confessions will be inadmissible. Allegedly, KSM was waterboarded, but in other cases, it doesn't matter if the extra-legal interrogation involved no torture or indeed no mistreatment of any kind; the mere fact that the interrogation was done outside the legal system, means that anything derived from it cannot be used.

But that's just the beginning. In order to convict KSM of any crime, a traditional US criminal prosecutor would had to have collected all available evidence and testimony, and legally sealed it, back in March, 2003, before he was captured. A new, "vigin" prosecutor would then be appointed, and he or she would have to make the case, using only material from the sealed files. That is the only way to prove that the case wasn't "contaminated" by information learned during the extra-legal interrogation(s).

Obama has left himself some wiggle room; allegedly, Lawrence Tribe is going to see about constructing an alternate legal system that will somehow permit trials but be different than the alternate legal system the Bush administration constructed.

Yet the ACLU argument all along has been, that [b]any[/b] alternative legal system was unacceptable. Will the ACLU give Tribe a pass? Will the ACLU sign off on a Tribe effort that is in substance similar to Bush's efforts. Will this new system's main and perhaps only virtue be that it doesn't have the Bush name associated with it? Wouldn't that make the whole effort a propaganda exercise?

Even if the ACLU sign off on Tribe's alternative, it is hard to imagine how the ACLU would sign off on anything that would permit evidence or confessions (even voluntary ones) gathered from anyone at Gitmo to be used.

Good article. As this story develops, I think we will discover it is much, much more complicated than even you or I realize.

For example,

"About 17 high-level detainees, such as Khalid Sheikh Mohammed, would also go on trial but before a new version of a national security court - not the Bush administration's much criticized military tribunals."

See, the problem is, the US Supreme Court threw out Bush's original military tribunal system because Bush used an executive order. To fix that, Bush got Congressional authority (i.e. a law) to re-establish his military tribunal system. Therefore, it is unlikely that Obama could set up this new "national security court" by executive order; he would need Congress to pass a law.

But it gets worse. Even if Congress could somehow approve Obama's new national security court, defendants would be able to challenge it under [i]Boumediene v. Bush[/i], a recent decision which is incredibly vague and still very poorly understood. [i]Boumediene[/i] appears to give everyone, even soldiers captured in uniform on the battlefield, the right to have a traditional US court determine if they belong in a traditional court or in the promised "national security court". [i]Boumediene[/i] gave no clear guidance as to how that should be decided; it just asserted the right of the courts to decide.

It seems the only quick way to satisfy all this requirements is to put the Gitmo detainees in traditional US courts, immediately. But it would be nearly impossible to convict a single one of them; therefore under existing law, there would be no choice but to release them into the US population, without the possibilty of deportation (unless they commit some new crime)

So good luck, Barack!

Obama could withdraw recent statements and instead state that he will be deferring any decision until after he gets in the White House. He could state that he doesn't have access to the kind of information and advice he needs until he becomes President. If he does this soon, the press would probably give him a pass; but if this story stays in the news for anther week or so, it will be too late.

If Obama doesn't pull out (pun intended) of this position quite soon, I could see this becoming the first major reversal of the new Obama administration. The bride may use up all her tricks before the honeymoon even starts!